5 things to know about the 9th Circuit
9th Circuit Court of Appeals nominee Daniel Bress was born and raised in Gilroy, Calif., but has lived all but one year of his adult life on the East Coast.
California’s Democratic senators, Dianne Feinstein and Kamala Harris, argue that should disqualify Bress from filling a California-based vacancy on the court, the largest and busiest in the country.
“Given California’s demographics and the high quality of its educational institutions – and given California’s centrality to the Ninth Circuit – I don’t understand why the White House would choose someone with such a limited connection to the state,” Feinstein complained during a hearing on March 7.
Even South Carolina Republican Lindsey Graham, the chairman of the Senate Judiciary Committee, said that could be a problem. “Having a nominee to the circuit court with very little connection to California bothers me,” he said.
Democrats have little leverage after eliminating the filibuster for judicial nominees in 2013. President Donald Trump and his Republican allies in the Senate have taken advantage of the rule change to confirm federal appeals court judges at a record pace. Occasionally, however, even Republicans have balked at some of Trump’s picks, forcing the White House to withdraw the nominee.
University of Richmond Law Professor Carl Tobias, an expert on judicial selection, said Bress’ nomination may spark concerns among Republicans that they could one day face a similar situation in their home state.
It’s “very rare” for a circuit court judge nominee not to live in the state where he or she is being nominated, Tobias said. And Graham “doesn’t want any president appointing someone for South Carolina in a way that he can’t have a substantial say on.”
Both constitutional and practical reasons make residency such an important issue..
The constitution gives senators the power of “advice and consent” over judicial nominees. Home state senators have traditionally played a critical role in screening and approving a president’s picks for federal courts in their state.
But after more than a year of negotiations with Feinstein and Harris’ offices, the White House nominated Bress and two other California-based attorneys over the senators’ objections.
Feinstein pointed out at the March 7 hearing that she and Harris had “agreed to support other candidates from the White House’s list, not from our preferred list, and still the White House chose to move forward with a nominee who does not live in California.”
While there is no law that federal appeals court seats must be allocated to certain states, University of California Berkeley Law School Dean Erwin Chemerisnky said via e-mail that it’s a longstanding custom and “it is taken very seriously.”
And as Tobias underscored, even as the 9th Circuit Court makes national headlines with politically weighty rulings — like striking down the president’s travel ban — the majority of cases that the court decides come from California district courts and “are very specific to California.”
“This is going to be a judge who is going to sit in the state where the vacancy arises and rule on life and death matters involving residents of the state,” he said.
Or as Chemerinsky put it, “This would essentially take a California seat away.”
The Trump administration denies that, arguing that Bress maintains deep connections to the state, despite moving away in 1997. He spent four years at Harvard University in Boston, then attended University of Virginia for law school and clerked for the Supreme Court and a federal appeals court in Virginia.
Bress did spend a year working for a law firm in San Francisco before joining Kirkland Ellis in 2008, primarily based out of their Washington, D.C. office. His family lives in the nearby suburbs.
An administration official who asked not to be identified, however, pointed out that Bress regularly works out of Kirkland’s San Francisco office, returning to the Bay Area every summer and over Christmas, while his children are out of school. Mark McKane, a litigation partner in Kirkland’s San Francisco office, confirmed that, noting that Bress has “done more work in California than any other state.”
He also owns property and pays taxes in California, the official said.
“His family is here, he grew up here, he understands the issues of the state,” McKane said. “And I kind of reject the suggestion that he’s a carpetbagger.”
The Senate Judiciary Committee held a hearing for California 9th Circuit court nominees Kenneth Lee and Daniel Collins on March 13. The committee has not yet scheduled a hearing for Bress. Neither Graham nor the White House would comment on any further discussions about his nomination.
But Tobias said he’d “be surprised to see them pull back from it,” given the risk of a backlash from right wing activists. “It depends on Graham, really, and how much he’s willing to go to bat” on the issue.